Monday, December 16, 2013
Court Rejects License Suspension Based on Vacated Conviction
By a MetNews Staff Writer
A real estate license cannot be suspended on the basis of a criminal conviction that has been set aside due to a defect in the defendant’s plea, the Third District Court of Appeal ruled Friday.
The justices rejected arguments by the Bureau of Real Estate—formerly the Department of Real Estate—that a setting aside of a conviction and dismissal following the withdrawal of the defendant’s plea is tantamount to an expungement, which would not preclude discipline under the relevant statute.
The ruling means that Peggy Anne Ryan-Lanigan, whose conviction for misdemeanor hit-and-run was set aside by an El Dorado Superior Court judge, will keep her salesperson’s license, which was returned to her by order of Sacramento Superior Court Judge Jaime R. Roman in November 2010, four months after it was revoked by the bureau.
Ryan-Lanigan was charged in El Dorado County in November 2007 after she rear-ended another vehicle, damaging its right rear bumper. The other driver told police that Ryan-Lanigan would not wait at the scene, got back in the car, and did not give her name and address.
She also said that Ryan-Lanigan, who had prior DUI convictions, smelled of alcohol and could hardly stand up straight. Ryan-Lanigan was not charged with driving under the influence in the case, but the California Highway Patrol investigated and submitted the hit-and-run charge.
Ryan-Lanigan entered a negotiated no-contest plea and was placed on probation for 36 months, including restitution and completion of a specified number of Alcoholics’ Anonymous meetings.
Ten months after the plea and sentencing, she was served with a disciplinary notice by the bureau, It alleged that the charge of which she was convicted was “substantially related” to the duties of her profession.
She sent the bureau a letter explaining that she was hurrying home from work on the day of the accident, felt ill, and did not realize that the car she hit was stopped on an incline at a newly-installed stop sign. She claimed she only pled guilty in order to avoid a lengthy trial and attorney fees.
She then hired a new criminal lawyer, who persuaded the trial judge to allow her to withdraw the plea on the ground she was not advised of the potential for professional discipline.
Prosecutors eventually agreed to drop the hit-and-run charge and allow her to plead no contest to speeding, which is an infraction. The judge then ordered that the hit-and-run charge be dismissed “in the interests of Justice.
At her administrative hearing, however, the administrative law judge ruled that the dismissal was “a simple set-aside” and not an adjudication on the merits, so that Ryan-Lanigan had suffered “the conviction of a crime” within the meaning of the licensing statute.
The bureau adopted the ALJ’s proposed decision, but Roman, granting a writ of administrative mandate, said the order dismissing the criminal case differed from an expungement in several respects—it was entered before the defendant completed probation; it made no mention of the expungement statute, § 1203.4; it did not state that the defendant was required to advise licensing agencies of the conviction, a requirement of § 1203.4; and it expressly eradicated the misdemeanor conviction and substituted a conviction of an infraction
Justice William J. Murray Jr., writing for the Court of Appeal, said Roman was correct.
A guilty or no-contest plea, if withdrawn, is inadmissible in administrative proceedings, based on the Evidence Code, the justice noted. This is not inconsistent with Business and Professions Code § 10177, which provides that an expunged conviction can still be used for professional discipline.
“We hold that section 10177 does not allow discipline when there has been a dismissal unless the dismissal is based on Penal Code section 1203.4,” the justice wrote.
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